The Human Rights Committee,
established under article 28 of the International Covenant on Civil and
Political Rights,

Meeting on 23 July 1999

Having concluded its
consideration of communication No.680/1996 submitted to the Human Rights
Committee on behalf of Lancy Gallimore, under the Optional Protocol to the
International Covenant on Civil and Political Rights,

Having taken into account all
written information made available to it by the author of the communication,
his counsel and the State party,

Adopts the following:

VIEWS UNDER ARTICLE 5, PARAGRAPH
4, OF THE OPTIONAL PROTOCOL

1. The author of the
communication is Lancy Gallimore, a Jamaican citizen imprisoned at the
General Penitentiary in Kingston. He claims to be a victim of violations by
Jamaica of articles 7, 10, paragraph 1, 14, paragraphs 1, 3 (b) and 5, of
the International Covenant on Civil and Political Rights. He is represented
by Mr. Anthony Poulton of Macfarlanes, a London lawfirm. The author's
offence has been reclassified as non-capital.

The facts as submitted by the
author:

2.1 The author was
arrested on 8 May 1987 for the murder, of one Angela Bess, which took place
on that day and was charged on 12 May 1987. On 18 November 1987, the author
was found guilty as charged and sentenced to death by the Kingston Circuit
Court. The Court of Appeal of Jamaica dismissed his appeal on 11 July 1988.
A further application for special leave to appeal to the Judicial Committee
of the Privy Council has not been filed, for reasons set out below.

2.2 Since his conviction
on 18 November 1987 the author was held at St. Catherine's District Prison
on death row. On 8 December 1992, the author's case was reviewed and
classified by decision of a single judge of the Court of Appeal as
non-capital murder pursuant to the Offences Against the Persons (Amendment)
Act 1992. The author's sentence was therefore commuted to life imprisonment.

2.3 As to the issue of
exhaustion of domestic remedies, counsel explains that Mr. Gallimore has not
petitioned the Judicial Committee of the Privy Council for special leave to
appeal against the judgment of the Court of Appeal, because the substance of
his appeal does not come within the restrictive jurisdiction of the Privy
Council, as it has established that it will not act as a Court of Criminal
Appeal. Furthermore, London counsel reportedly advised that such a petition
would have little prospect of success. Thus, it is submitted, in the
author's case an appeal to the Judicial Committee of the Privy Council is
neither an effective nor an available remedy.

2.4 In the same manner,
the author did not apply to the Supreme (Constitutional) Court of Jamaica
for redress, because it is considered that such a constitutional motion
would inevitably fail in the light of the precedent set by the decisions of
the Judicial Committee of the Privy Council in DPP v. Nasralla (1967) 2 ll
ER 161 and Riley v. Attorney General of Jamaica, (1982) 2 All ER 469, where
it was held that the Jamaican Constitution was intended to prevent the
enactment of unjust laws and not merely unjust treatment under the law. It
is stated that since the author alleges unfair treatment under the law and
not that post constitutional laws are unconstitutional, the constitutional
remedy is not available to him. It is further submitted that, even if it is
considered that the author does have a constitutional remedy in theory, in
practice it is not available to him because of his lack of funds and the
unavailability of legal aid. In this connection, reference is made to the
Committee's jurisprudence in relation to the communications of Raphael Henry
(communication No. 230/1987) and Lynden Champagnie, Delroy Palmer and Oswald
Chisholm (communication No. 445/1991).

2.5 The case for the
prosecution was that, on 8 May 1987, at 9.30 p.m., Angela Bess, after
talking with the author in the street, was killed by one stab with an
ice-pick by the author.

2.6 The prosecution's case
was mainly based on the evidence of one Phillip Robinson. He testified that,
sitting in the front of a minibus, he witnessed the author with his back
turned towards the road talking with the deceased near the bus station, when
suddenly the author pulled something out from the vicinity of his waist and
made a hostile motion towards her. He saw the author move off quickly, he
got out of the bus, the woman fell into his arms and told him, that the man
had stabbed her. The witness put her down on the ground and got back onto
the bus which was driving in the same direction as that in which the author
was attempting to escape. The author got on the bus, and when he got off,
the witness followed him, and, pretending to be a police officer, challenged
the author to stop. He searched the author's pockets and found an ice-pick.
Having removed this, the witness took the author to the police station.

2.7 The body of Angela
Bess, bearing a stab wound in the region of the heart, was found by the
police at the place of the incident later in the evening, and identified on
15 May 1987 by Aneita Taylor, the mother of the deceased.

2.8 The author's defence
was based on mistaken identity. The author made a sworn statement alleging
that he was in a bar having drinks, after which, while he was waiting for a
bus, the witness and another man came towards him, called him George
Campbell and forced him at gun point to follow them first to the place of
the incident and then to the police station. He stated that the deceased was
entirely unknown to him.

2.9 The appeal of the
author was based on the grounds of unfair trial and insufficient evidence to
warrant a conviction. The author himself was not present at the appeal and
was represented by a different legal aid lawyer than the one who had
represented him at the trial. The author's appeal lawyer did not argue any
grounds of appeal on his behalf, and stated that he could not find any
arguable grounds in favour of the author.

THE COMPLAINT:

3.1 The author claims that
he is a victim of a violation of article 10, paragraph 1, of the Covenant.
In this connection, counsel states that, between 8 and 9 May 1987 while the
author was in custody, he was twice beaten by the police with cable brake
wire all over his body and police officers stood on his stomach. The matter
was not raised during the trial. Counsel further states that the author has
been badly beaten several times by prison warders with no cause when he was
detained in St. Catherine District Prison on death row, and that as a result
of one beating he was unable to use his right hand for 17 days. Counsel adds
that, despite several complaints to the prison officers, the author has not
been treated for the resulting injuries, nor has he been seen by a doctor.

3.2 It is further stated
that the author wrote to the Parliamentary Ombudsman after he had been
beaten up by police officers while in custody on 8 and 9 May 1987, but
received no response. No copy of the author's letter is provided. Reference
is made to the Amnesty International Report of December 1993 in which it is
stated that the Office of the Ombudsman does not have sufficient funding to
be effective, and it is stated that the last report of the Ombudsman was
dated December 1988. It is therefore submitted that the Office of the
Parliamentary Ombudsman does not provide an effective domestic remedy in the
circumstances.

3.3 As to his claim under
article 14 of the Covenant, counsel refers to passages of the judge's
summing-up to the jury. It is submitted that the trial judge failed to
properly direct the jury, according to the legal rules required in
identification cases as they are laid down in the decision R. v. Turnbull
[1977] QB 244. In particular, it is said that the identification warning
given to the jury by the judge was inadequate, and that the indication of
the weakness in the evidence was unclear and unsatisfactory.

3.4 As to article 14,
paragraph 3 (b), counsel states that the author did not have adequate time
for the preparation of his defence and to communicate with counsel of his
own choosing. In this connection, counsel points out that the legal aid
lawyer in the first court hearing was assigned by the judge and was not
chosen by the author. Counsel alleges that the author met with his attorney
for the first time only four weeks after his arrest, that the interview
lasted 10 minutes and no written statement was taken by the attorney. He
points out that the author had only two subsequent meetings, after the
Preliminary Hearing and immediately before the trial, which also lasted only
ten minutes, and that this was not enough time to go through his case with
his lawyer. No witnesses were called on the author's behalf.

3.5 Counsel further points
out that, as regards his appeal, the author was assigned another legal aid
lawyer, whom he did not meet prior to the appeal, and who failed to argue
any grounds of appeal on the author's behalf. The author did not attend the
appeal himself. It is stated that this constitutes at the same time a
violation of article 14, paragraph 5, of the Covenant.

3.6 With respect to
article 14, paragraph 5, of the Covenant, counsel further states that the
author did not have access to the trial transcript and a duly reasoned
summing up of the judge before the appeal. He argues that this effectively
denied him the right to have his conviction reviewed by a higher tribunal.
No information is provided whether the author ever asked for a copy of the
trial transcript and the summing up, and the author's counsel appears to
have possessed a copy. In this connection, reference is made to the
Committee's jurisprudence in relation to the communications of Raphael Henry
(communications No. 230/1987) and Leaford Smith (communication No.
282/1988), where the Committee held that in order to enjoy the effective use
of his right to have conviction and sentence reviewed by a higher tribunal,
the convicted person is entitled to have, within a reasonable time, access
to written judgements, duly reasoned, for all incidents of appeal.

3.7 Counsel submits that,
at the review of the author's classification, the non-parole period of his
sentence was set at twenty years From the file it appears that in the notice
to prisoner of a single judge's decision, the author was sentenced to 15
years before becoming elegible for parol. and stated to commence on the date
of his classification as a non-capital offender, thereby failing to take
into account the five years during which he was held on death row at St.
Catherine District Prison. In this connection it is submitted that the
retrospective nature of Section 7 of the Offences Against the Persons
(Amendment) Act 1992, which reclassifies prisoners already on death row, is
contrary to both article 14 of the Covenant and the Jamaican Constitution.
Counsel argues that under Section 7 of the Act the author was in fact
convicted of a new offence, and should therefore have been afforded the
rights of a full trial hearing. He was, however, not provided with any
reasons for his classification as a non-capital offender or for the length
of the sentence imposed on him, and was not given any opportunity to make
any presentation concerning the classification by the single judge or to
appeal against the sentence imposed on him by that judge.

3.8 Counsel states that if
the non-parole period of the author's sentence does not take into account
the five years he spent on death row, it would be contrary to article 7 of
the Covenant since he was held for such a substantial period as a condemned
man. It is therefore requested that the Committee provides an appropriate
remedy in relation to such a violation which in this case should be a
recommendation that his sentence be reduced to take account of the time
which the author spent in prison prior to his reclassification.

THE STATE PARTY'S SUBMISSION AND
COUNSEL'S COMMENTS THEREON:

4.1 In its submission of
21 June 1996, the State party states that it will respond to the merits
despite considering that the communication should be declared inadmissible
for failure to exhaust domestic remedies since the author has not sought
review of his case by the Privy Council.

4.2 With respect to the
alleged violation of article 7 because the period of time which the author
was required to serve, following the reclassification of his offence, did
not take into account the five years spent on death row, the State party
holds that the question of parole is dealt with in section 7 of the Offences
Against the Persons (Amendment ) Act 1992. It provides that a judge may
specify the time which a person has to serve before he is eligible for
parole. Where no such period is specified, a minimum of 7 years must be
served before a person can be eligible for parole. The Act does not specify
the criteria which should be looked at in determining the period to be
served. Rather the judge, in the exercise of his discretion, would look at
all the relevant circumstances before making a recommendation. There is no
requirement to take the period already served into account. Further unless
it can be shown that, in exercising his discretion, the judge acted
unreasonably or exceeded his authority in law, it cannot be argued that
there was any breach of article 7.

4.3 With respect to the
allegation of a breach of article 10 due to the ill-treatment the author
received while on death row, the State party contends that it needs
additional information as to the actual dates or approximate dates of the
incident, the names of the warders and any other information available in
respect of the incident in order to investigate it.

4.4 With regard to the
violation of article 14, paragraph 3 (b), since the author who was
represented by a legal aid lawyer both on trial and on appeal, did not have
adequate time to meet with them, the State party submits that it is its duty
to provide competent legal aid counsel. However, the manner in which counsel
chooses to represent his client and any failings therein cannot be
attributed to the State party.

4.5 The State party
rejects the allegation that there has been a breach of article 14, paragraph
5, because the author did not have access to his trial transcript and the
duly reasoned summing up of the trial judge. The fact remains that legal aid
counsel did represent the author before the Court of Appeal where his case
was examined. Consequently, the State party rejects the view that any
violation has occurred.

4.6 With respect to the
purported breach of article 14, because of the retrospective nature of
section 7 of the Offences Against the Persons (Amendment) Act 1992, in terms
of the reclassification of offences, the State party notes that the author
has alleged that this further constitutes a breach of the Jamaican
Constitution. Having identified a constitutional breach it is incumbent upon
the author to pursue a domestic remedy for that breach, before applying to
the Committee. Consequently, this part of the communication should be
declared inadmissible under article 5, paragraph 2 (b), of the Optional
Protocol.

5.1 In his submission of
16 August 1996, counsel rejects the State party's affirmations that an
appeal to the Privy Council is still open to the author. He points out that
the author has not sought to have his case reviewed by the Judicial
Committee of the Privy Council because the grounds on which the Privy
Council will entertain an appeal from foreign countries in criminal matters
are very limited. It has been established that it will rarely act as a court
of criminal appeal as it limits appeals in criminal cases to those where in
its opinion some matter of constitutional importance has arisen or where a
substantial injustice has occurred. Given that the Privy Council's
jurisdiction is therefore extremely narrow (and far more limited than the
powers of the United Nations Human Rights Committee), the Applicant has not
petitioned the Privy Council for special leave to appeal against judgement
of the Court of Appeal of Jamaica as this is neither an available nor an
effective remedy. In accordance with the advice given in writing by leading
counsel, the author has not petitioned the Privy Council.

5.2 Counsel reiterates the
original claim that a violation of article 7 of the Covenant has occurred as
the time the author had already served on death row when he was reclassified
under the Offences Against the Persons Amendment Act was not taken into
account when establishing the non parole period he would have to serve.
Counsel states that since the Act does not specify the criteria which should
be looked at to determine the period to be served, it seems only reasonable
that a judge would at least consider the period already served, when
exercising his discretion.

5.3 With respect to the
allegations of beatings by warders, counsel reiterates his claim and
emphasizes that the State party has been provided with all the information
available to him, which should be more than enough if there was a serious
wish to investigate.

5.4 With regard to the
allegation that the author did not have adequate representation due to the
lack of time with defence counsel in order to prepare his defence, counsel
reiterates that a breach of article 14, paragraph 3 (b), has occurred even
if the State party refuses to accept responsibility for it.

5.5 Counsel accepts that
the author's case was reviewed by the Court of Appeal but reiterates that
the author did not have access to the trial transcript and duly reasoned
summing up of the judge before the appeal on 11 July 1988, and consequently,
there has been a violation article 14, paragraph 5, of the covenant. From
the file it appears that the Court of Appeal examined the case and counsel
for the defence said that: "having gone through the record as carefully as
possible, he could find no arguable ground on behalf of the applicant".

ISSUES AND PROCEEDINGS BEFORE
THE COMMITTEE:

6.1 Before considering any
claim contained in a communication, the Human Rights Committee must, in
accordance with rule 87 of its procedure, decide whether or not it is
admissible under the Optional Protocol to the Covenant.

6.2 With respect to the
author's claim that he was not properly represented by his legal aid counsel
on trial, since he met with him only for a short time prior to the trial and
failed to follow his instructions in visiting the scene of the crime and did
not call a defence witness in violation of article 14, paragraph 3 (b) and
(e), the Committee recalls its prior jurisprudence that it is not for the
Committee to question counsel's professional judgement, unless it was clear
or should have been manifest to the judge that the lawyer's behaviour was
incompatible with the interests of justice. In the instant case, there is no
reason to believe that counsel was not using other than his professional
judgment. The Committee finds that in this respect, the author has no claim
under article 2, of the Optional Protocol.

6.3 With regard to the
author's allegations concerning irregularities in the court proceedings,
improper instructions from the judge to the jury on the issue of
interpretation of identification evidence, in particular that the
identification warning given to the jury by the judge was inadequate and
that the indication of the weakness in the evidence was unclear and
unsatisfactory, the Committee reiterates that while article 14 guarantees
the right to a fair trial, it is generally for the courts of States parties
to the Covenant to review the facts and evidence in a particular case.
Similarly, it is for the appellate courts of States parties and not for the
Committee to review the judge's instructions to the jury or the conduct of
the trial, unless it is clear that the judge's instructions to the jury were
arbitrary or amounted to a denial of justice, or that the judge manifestly
violated his obligation of impartiality. The author's allegations and the
trial transcript made available to the Committee do not reveal that the
conduct of Mr. Gallimore's trial suffered from such defects. In particular,
it is not apparent that the judge's instructions on how to interpret
identification evidence, were in violation of his obligation of
impartiality. Accordingly, this part of the communication is inadmissible,
as non substantiated, pursuant to article 2 of the Optional Protocol.

6.4 With respect to the
requirement of exhaustion of domestic remedies, the Committee has noted the
State party's contention that the author has failed to petition the Judicial
Committee of the Privy Council for special leave to appeal. The author's
failure to petition this body cannot, however, be attributed to him, as in
order to petition the Judicial Committee, as a poor person, the petition
must be accompanied by an affidavit in support of the petition as well as
the certificate of counsel that the petitioner has reasonable grounds of
appeal. The author has not petitioned the Privy Council on the advice he was
given in writing by leading counsel. In this respect, the Committee wishes
to recall its constant jurisprudence Communication No. 283/1988 (Aston
Little v. Jamaica), Views adopted on 1 November 1991. and finds, in the
circumstances of this case, that the application to the Privy Council cannot
be considered an effective remedy and does not constitute a remedy which
must be exhausted by the author for the purposes of the Optional Protocol.
The Committee therefore considers that it is not precluded by article 5,
paragraph 2 (b), from considering the communication.

6.5 With regard to the
State party's contention that the communication is inadmissible for failure
to exhaust domestic remedies with respect to the possibility of filing a
constitutional motion for an alleged breach of the Constitution in respect
of Section 7 of the Offences Against the Persons, (Ammendment) Act 1992, the
Committee recalls its jurisprudence that for purposes of article 5,
paragraph 2(b), of the Optional Protocol, domestic remedies must be both
effective and available. It notes the State party's argument that a
constitutional remedy was still open to the author, and observes that the
Supreme Court of Jamaica has, in some cases, allowed applications for
constitutional redress in respect of breaches of fundamental rights, after
the criminal appeals in these cases had been dismissed. The Committee,
however, recalls that the State party has indicated on several occasions
that no legal aid was made available for constitutional motions. It
considers that, in the absence of legal aid, a constitutional motion does
not constitute an available remedy which needs to be exhausted for purposes
of the Optional Protocol.

6.6 The Committee declares
the rest of the claims admissible and proceeds, without further delay, to an
examination of the substance of these, in the light of all the information
made available to it by the parties, as required by article 5, paragraph 1,
of the Optional Protocol.

7.1 With respect to the
author's claims of ill-treatment, the Committee notes that he has alleged
beatings while in police custody, which the State party has failed to
address altogether. Consequently, the Committee finds that due weight must
be given to the allegations. With respect to the author's claim that he was
beaten while in detention at St. Catherine District Prison and did not
receive medical treatment for a hand injury, as a result of which he was
unable to use his hand for 17 days, the Committee notes the State party's
claim that it required additional information as to the events. It also
notes that Counsel has stated that the author raised the issue with the
prison warders. In return the State party merely requests additional
information and does not seem to have investigated the matter. It also notes
that the letter from counsel informing the Committee of his inability to
provide more information than that already submitted was transmitted to the
State party in December 1996. In the absence of further information from the
State party, the Committee considers that due weight must be given to the
author's complaint and accordingly finds that the treatment he received at
the hands of the authorities both while in police custody and later in
detention are in violation of articles 7 and 10, paragraph 1, of the
Covenant.

7.2 The author further
claims that his rights under article 14, paragraph 1, were violated in the
reclassification procedure in which the author's offense was classified as
non-capital under Section 7 of the Offenses Against the Persons (Amendment)
Act 1992 and the non-parole period was set to 15 years. It is submitted that
the author was not provided with any reasons for the length of the non
parole-period and was not given the opportunity either to make any
contribution to the procedure or to appeal against the sentence imposed on
him by the single judge. Even though a life sentence is prescribed by law
for offenses reclassified as non-capital, the Committee notes that the judge
when fixing the non-parole period exercises discretionary power conferred on
him by the Amendment Act 1992 and makes a decision which is separate from
the decision on pardon and forms an essential part of the determination of a
criminal charge. The Committee notes that the State party has not contested
that the author was not afforded the opportunity to make any submissions
prior to the decision of the judge or the opportunity to seek review of that
decision. In the circumstances, the Committee finds that article 14,
paragraphs 1 and 3 (d) were violated.

7.3 With regard to the
alleged violation of articles 7 and 10, paragraph 1, on the ground that the
time the author spent on death row (5 years) and the non-parole period of 15
yearsSee fotnote 7. set by the judge together amount to cruel and inhuman
punishment, the Committee recalls its constant jurisprudence that the period
of time spent on death row does not per se constitute a violation of article
7. As to whether the combined effect of the five years on death row and the
non-parole period of 15 years amounts to cruel and inhuman punishment,
bearing in mind the nature of the offence, the Committee finds that there
has been no violation of articles 7 and 10 in this regard.

7.4 With regard to
counsel's claim that the author was not effectively represented on appeal,
the Committee notes that the author's legal representative on appeal
conceded that there was no merit in the appeal. The Committee recalls its
jurisprudence See inter alia, the Committee's Views in cases Nos. 734/1997
(Anthony McLeod v. Jamaica), adopted on 31 March 1998, paragraph 6.3;
537/1993 (Paul Anthony Kelly v. Jamaica), adopted on 17 July 1996, paragraph
9.5. that under article 14, paragraph 3(d), the court should ensure that the
conduct of a case by a lawyer is not incompatible with the interest of
justice. While it is not for the Committee to question counsel's
professional judgement, the Committee considers that in any criminal
proceedings and in particular in a a capital case, when counsel for the
accused concedes that there is no merit in the appeal, the Court should
ascertain whether counsel has consulted with the accused and informed him
accordingly. If not, the Court must ensure that the accused is so informed
and given an opportunity to engage other counsel. The Committee is of the
opinion that in the instant case, Mr. Gallimore should have been informed
that his legal aid counsel was not going to argue any grounds in support of
his appeal, so that he could have considered any remaining options open to
him. The Committee concludes that there has been a violation of article 14,
paragraph 5, in respect to the author's appeal.

8. The Human Rights
Committee, acting under article 5, paragraph 4, of the Optional Protocol to
the International Covenant on Civil and Political Rights, is of the view
that the facts before it disclose violations of articles 7, 10, paragraph 1
and article 14, paragraphs 1, 3(d) and 5, of the Covenant.

9. In accordance with
article 2, paragraph 3 (a), of the Covenant, the State party is under an
obligation to provide Mr. Gallimore with an effective remedy, including
either reducing the non-parole period to the Ammendment Act's minimum of
seven years, or reevaluating the non-parole period in a procedure that
guarantees the enjoyment of the author's rights under article 14, or some
other appropriate procedure. The State party is under an obligation to
ensure that similar violations do not occur in the future.

10. On becoming a State
party to the Optional Protocol, Jamaica recognized the competence of the
Committee to determine whether there has been a violation of the Covenant or
not. This case was submitted for consideration before Jamaica's denunciation
of the Optional Protocol became effective on 23 January 1998; in accordance
with article 12(2) of the Optional Protocol the communication is subject to
the continued application of the Optional Protocol. Pursuant to article 2 of
the Covenant, the State party has undertaken to ensure to all individuals
within its territory and subject to its jurisdiction the rights recognized
in the Covenant and to provide an effective and enforceable remedy in case a
violation has been established. The Committee wishes to receive from the
State Party, within ninety days, information about the measures taken to
give effect to the Committee's Views. The State party is also requested to
publish the Committee's Views.

I hold a dissenting opinion on
paragraph 7.1. The author has made specific allegations of ill-treatment
while detained in police custody and later in St. Catherine's Prison, where
he suffered an injury to his hand which rendered it unusable for 17 days;
according to his counsel, the prison authorities were apprised of the fact.
The State party has provided no information on these claims, merely asking
the Committee for further details: this is not proper in view of its
obligation under article 4, paragraph 2, of the Optional Protocol. Nor has
the Committee been informed whether any investigation into the matter was
mounted. In the light of the foregoing, the Committee considers that account
must be taken of the author's accusations, and that the treatment the author
suffered, both in police custody and in prison, violates articles 7 and 10,
paragraph 1, of the Covenant.